The Legacy of the Nuremberg Military Tribunals in International Humantarian Law

by Detlev Vagts

In a brief chapter titled “Legacy” Kevin Jon Heller opens up the issue of the influence of the Nuremberg Military tribunals (NMTs) on the later development of the international law of war. This contribution will expand on that chapter. First, it discusses the effect of the trials on the later behavior of nations and individuals. Did it deter potential criminal activities? A second section looks at the influence of the NMTs on the subsequent codification of international humanitarian laws. The third section explores their impact on the work of later tribunals, both national and international.

Criminal law enforcement is supposed, aside from imposing retribution and disabling the convicted, to deter others from committing crimes. Did Nuremberg deter? The answer to this question is blurred by the fact that one can have no idea as to who might have instigated some horrendous mass killing but refrained from doing so out of fear. We do know that there have been episodes of gruesome massacres in recent history. One cannot overlook events in the former Yugoslavia, in Rwanda and other African countries, in Cambodia and Chechnya. Only Yugoslavia is so closely connected with Europe for there to have been any carry forward in individuals’ consciousness of World War II and Nuremberg. Deterrence evidently did not happen.Of course to have been deterred one would have had to believe that an international coalition could be put together. Just possibly the creation of the International Criminal Court will cause somebody to refrain from bloodshed.The Sudan may afford the first test of this. One asks the same question about the crime of waging an aggressive war. A conspicuous, clear cut aggression was Saddam Hussein’s invasion of Kuwait twenty years ago. It was quite universally condemned and there was widespread approval of the U.S.-led coalition’s ouster of his forces. The U.S. incursion into Iraq in 2003 did not garner the same approval.

Re-codification of the law of war began in Geneva just as the NMTs were winding down. The conference here produced four conventions replacing the prisoner of war Convention of 1929 and the 1899 and 1907 regulations. Heller’s “Legacy” stresses two changes in the law: the prohibition on taking civilian hostages and reprisals against civilians. Reluctantly, the NMTs had found that the then customary international law did not ban those practices.Another important response to Nazi practices was the ban on individual or mass transfers or deportations of nationals of the occupied state out of their territory and of transfers into the occupied zone. This is controversies in respect of Israel and the West Bank. Nearly all international lawyers outside of Israel are of the opinion that its settlements in the West Bank are illegal. This has an influence on current endeavors to create a resolution of the Palestine conflict. The same provision created difficulties for a CIA program in 2003 designed to take detainees out of Iraq and bring them to other countries where they could be interrogated more conveniently. The Office of Legal Counsel rendered an opinion that the term “deportation” did not cover persons who were not nationals of Iraq. Outside observers tend to disagree.

There came to be another attempt at codification—the Additional Geneva Protocols of 1977. The focus of this effort was on the protection of civilians from the devastation of war. In World War II both sides resorted to the blanket bombing of cities—often at night—that killed hundreds of thousands of noncombatants. Nobody was tried for these killings; If the Axis had won the war they would surely have tried “Bomber Harris” for the RAF’s actions.Laser guided missiles and unmanned drones have made more accurate targeting feasible. Although the United States has never become a party to the Protocols, its armed forces have tried hard to minimize civilian casualties in Serbia, Iraq and Afghanistan. Finally, we come to the latest codification enterprise, the Rome Statute of the International Criminal Court that restates much substantive international criminal law.

Third, we come to the case law and the claim that the NMT laid the basis for a customary law of war crimes. Here the book is a trifle sketchy.For one thing, it does not mention the national court trials for Nazi war criminals started by Germany in the 1960s, particularly the concentration camp cases, nor the Israeli prosecution of Eichmann and Demjanjuk. It does, however, study the work of the ICTY and the ICTR. One of the contributions of the NMTs to the activity of the Yugoslavian and Rwandan courts is that it protects them from the charge of violating the rule against retroactivity in criminal charges. The ICTY has in its now rather extensive case law often referred to NMT precedent ((Heller cites more than 30 cases).They involve such issues as the conditions for imposing command responsibility, and liability for aiding and abetting. These decisions also rely on the NMTs for learning on such defenses as coercion and ‘tu quoque” (you also did it). The book also cites a handful of U.S. Court opinions tied to the work of the NMTs. These involve the Alien Tort Claims Act that gives U.S. district courts jurisdiction over torts in violation of the “law of nations.” The particular thrust of these cases lies in the question whether corporations can be held liable for violations of the law of nations. It is generally assumed that this is the same question as whether they can under international law be found guilty of crimes. Several cases involve the charge that a multinational corporation aided and abetted the governments of Myanmar and South Africa in violating human rights. Several courts have upheld the idea that they could be but the Court of Appeals opinion in Kiobel has gone against the stream.The NMT cases do not clarify this; corporate managers but not their employers were found guilty then.

Thus Nuremberg lives, making its presence felt right down to today.The NMTs also live in another sense: the Harvard Law School library is digitizing the NMT records. This is a necessary task because so many researchers have handled the paper documents that they are deteriorating rapidly.

And too, let’s not ignore that the first paragraph of Article 49 complicates matters in that it reads: “Individual or mass forcible transfers”.

Moreover, since Jews lived in Judea and Samaria and Gaza, for centuries, prior even to the British Mandate, in Hebron, Gaza city, Nablus and other locations, not to mention other communities established after 1920, how could now Jewish residency locations there be considered illegal? That is not logical. Unless, of course, you mean that Arabs can ban and prohibit Jews from living where they claim is their state territory. But that would return us to the Nuremburg Trials in that “Palestinians” could be thought of as applying Nazi ideology and even actions to the situation.

Even former US Sec’y of State M<adeline Albright admitted in an interview with Matt Lauer on The Today Show – NBC TV on October 1, 1997 that Israeli civilian presence in Judea and Samaria is legal (http://www.imra.org.il/story.php3?id=53805)

So, Vagts claims that “nearly all” international lawyers outside of Israel consider the settlements illegal; Yisrael Medad comes up with a half-dozen names that do not consider them illegal and claims that Vagts’ statement is “factually wrong.” As John Stewart would say, I don’t think “nearly all” means what Medad thinks it means…

The phrase “Individual or mass forcible transfers . . .” as used in the first paragraph of article 49 of the Fourth Geneva Convention of 1949 refers only to the transfer of civilian populations OUT of occupied territory. The rule with regard to transferring population INTO occupied territory is found in the sixth paragraph of that article which simply reads in its entirety “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Although the language is reasonably self-explanatory, The ICRC’s Commentary on the article is still helpful at dispelling misconceptions:

This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.

The paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words “transfer” and “deport” is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.

It would therefore appear to have been more logical — and this was pointed out at the Diplomatic Conference (14) — to have made the clause in question into a separate provision distinct from Article 49, so that the concepts of “deportations” and “transfers” in that Article could have kept throughout the meaning given them in paragraph 1, i.e. the compulsory movement of protected persons from occupied territory. [End of commentary]

11.02.2011
at 10:06 am EST Dave Glazier

a) I think the intent of writing “nearly all” was to be dismissive and in response, I noted a former ICJ justice; Harvard Law School Head; Canadian non-Jewish int’l lawyer; a Sec’y of State; et al. That’s what I meant – that numbers do not necessarily count.

b) to imply, by using the language “certain powers”, that what Israel has done (or not done) vis a vis Judea and Samaria is comparable to what Nazi Germany did is reprehensible and foul.

c) no one has dealt with the proper status of the territory of Judea and Samaria and Gaza in its diplomatic and judicial framework as being part and parcel of the intended Jewish national home as of 1922 in a decision of international legal validity. Ignoring that history and starting the argument post-1967 is downright silly.

d) applying Geneva Convention principles in a situation where there is no High Contracting party that can claim to be one, is awkward, at the least.

b) to imply, by using the language “certain powers”, that what Israel has done (or not done) vis a vis Judea and Samaria is comparable to what Nazi Germany did is reprehensible and foul.

Give me a break. Article 49 was motivated by the Nazis. Israel has violated Article 49. That does not mean what Israel has done is “comparable” to what the Nazis did. It simply means that what both did is illegal. If someone is convicted of murder, does that mean they are being compared to Goering or Seyss-Inquart, because they were convicted of murder, too?

d) applying Geneva Convention principles in a situation where there is no High Contracting party that can claim to be one, is awkward, at the least.

I was waiting for Medad to dust off that canard. The idea that GC IV does not apply has been rejected by the ICJ, the ICRC, the UN, and “nearly all” — which does not mean “all” — scholars. Even various Israeli Attorney Generals have rejected that position. Moreover, even if it does not apply as conventional law, it clearly applies as customary law.

Very interesting post, especially on your comments on Professor Heller’s scholarly method vis-a-vis the use of custom from Nuremberg vs. domestic sources. A question for you, how do you go about assessing a fellow professor’s scholarly method when it comes to IHL. I ask because you reportedly criticized Jack Goldsmith’s scholarly method when you voted against his appointment to HLS. Specifically, how do you see the difference in an acceptable vs. unacceptable vs. stellar methodology? Is rational choice theory per se unacceptable or less stellar, what about a TWAIL approach? How do you ensure that one’s political opinions don’t color one’s judgment of an approach generally associated with a political bent, such as TWAIL or rational choice models.

11.02.2011
at 9:25 pm EST NewStream Dream

To KJH: well, actually using that Article when, as I have pointed out, the whole demographic history of Judea & Samaria is quite different thatn what you are trying to have Art. 40 apply to is simply wrong. And in being wrong, you are allowing people to think the situations are similar in that Nazis conquer and occupy and transfer into territories not theirs and Israel has done the same. * But the situation is not at all comparable if one takes into account the League of Nations decision (so far studiously avoided), the history of Jews in that area for centuries (avoided) and the aggressive nature of the Arabs throughout the mandate period, in subversion of the UN recommendation to partition, their fedyeen terror campaign 1949-1956 and the fatah/PLO terror 1964-1967 which led to Israel engaging in a defensive war fully justified. So, as for spreading canards, one should not be the first to slide into one.

b) as for the other “canard”, the High Contracting Party, funny how what that term means is all of a sudden altered to include/mean something else not even similar. No “Palestinian Arab national group” ever existed in history. In the Mandate era, the Arabs never called themselves “Palestinians” and at first were Southern Syrians. There was the Arab Higher Committee, etc. If anyone, the Jews were referred to as “Palestinians” (and yes, I am aware that all carried Palestinian passports but I am referring to the political sociology of the phenomenon). Funny, too, how UN Res. 242 doesn’t mention them. It refers to “achieving a just settlement of the refugee problem; …guaranteeing the territorial inviolability and political independence of every State in the area…;”. Even in 1967 the “Palestinians” didn’t legally exist enough to be referred to by the UN. Amazing. All the people concern was for refugees which could have referred to some 3000+ Jewish refugees ethnically cleansed by Arabs from Judea and Samaria in 1948 (and were cared for by the UN until 1952).

* from Eugene Rostow, The New Republic on April 23, 1990:

“Where the territory of one contracting party is occupied by another contracting party, the Convention prohibits many of the inhumane practices of the Nazis and the Soviets before and during the Second World War-the mass transfer of people into or out of occupied territories for purposes of extermination, slave labor, or colonization, for example. Article 49 provides that the occupying power “shall not deport or transfer part of its own civilian population into the territory it occupies.”
But the Jewish settlers in the West Bank are volunteers. They have not been “deported” or “transferred” by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent. Furthermore, the Convention applies only to acts by one signatory “carried out on the territory of another.” The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate. It is hard, therefore, to see how even the most literal-minded reading of the Convention could make it apply to Jewish settlement in territories of the British Mandate west of the Jordan River.”

So, on the one hand we have the ICJ, the ICRC, the UN, and various Israeli Attorney Generals. (And the U.S., noted critic of Israel.) On the other, we have Eugene Rostow. Readers can decide for themselves which is more persuasive.

49(6) means the government cannot move, en masse, it’s civilian population into occupied territory. It does not say it is required to block, prohibit, obstruct such voluntary movement by civilians at their own initiative, let alone civilians of a particular ethnicity. The resettlement of the West Bank began in the 70s against significant resistance. The government eventually caved, by the GC does not require it to resist. Israels government has at times encouraged settlement in some places, at times discouraged it. Since all the movements were ultimately quite voluntary, I would not think it violates 49(6) but would at least be prepared to understand an argument that goverenment construction is a violation but not private construction, but the across the board argument seems to have no support in the language or purposes behind the provision, and to be distinctly illiberal in nature.

11.04.2011
at 1:18 pm EST Eugene Kontorvich

There is nothing remotely illiberal about the idea — widely accepted among IHL and ICL scholars — that Article 49(6) of GC IV prohibits “voluntary” transfers of an occupying power’s population into occupied territory, and that idea is completely consistent with the purpose of Article 49(6). The entire point of the law of occupation is to protect the civilian population of occupied territory, including its property rights, for the duration of the occupation. The occupying power thus has a fundamental responsibility to ensure that neither it nor its nationals make any changes to the political, legal, and economic structure of occupied territory that are not strictly necessary for military or security reasons. That obligation is no less violated by an occupying power permitting its nationals to “voluntarily” move into occupied territory and erect settlements than by an occupying power forcing its nationals to move into occupied territory and erect settlements. So, yes, the Israel government was required by Article 49(6) to resist “voluntary settlement”; as the occupying power, Israel was and is responsible for the actions of its nationals in occupied territory.

The idea that Israel is not responsible for the settlements is also unpersuasive. Is there a single settlement that has not in some way benefited from the actions of the Israeli government, whether in terms of tax breaks, security, provision of services, etc.? The settlers might have “voluntarily” decided to move into occupied territory, but they did so because they knew that Israel would not simply force them to fend for themselves — politically, legally, economically, militarily — against the Palestinians. So it is difficult to claim that Israel simply failed to “resist” the settlements.

Finally, a question for Eugene, Medad, or anyone. Article 49(6) does not require transfer to be forcible, unlike Article 49(1), which governs deportation of civilians from occupied territory. If Article 49(6) does not prohibit “voluntary” transfer of civilians into occupied territory — and notice that Eugene believes that a government does not violate Article 49(6) even if it actually builds settlementsin occupied territory — but does not require coercion, what does it prohibit? What kind of non-coercive but involuntary transfer is there?

See also Eyal Benvenisti — not exactly a radical lefty — here, describing the Israeli argument about “voluntary” settlement as “doubtful, since it seems that the purpose of the article is to protect the interests of the occupied population, rather than the population of the occupant.”

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